Tyrrall Farrow Cannon v. Matthew Cate

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

February 2, 2011

TYRRALL FARROW CANNON, PLAINTIFF,v.MATTHEW CATE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a prisoner proceeding pro se, brings this apparent civil rights action pursuant to 42 U.S.C. § 1983. While plaintiff's initial pleading is presented on this court's form for civil rights complaints by state prisoners, plaintiff seems to be challenging the duration of his confinement. In particular, for relief plaintiff asks that the court direct either the California Department of Corrections and Rehabilitation or the Board of Parole Hearings to "recall sentence." Given the relief request, it seems that plaintiff may actually be intending to challenge the fact or duration of his confinement, in which case his sole remedy would be a habeas corpus petition. However, plaintiff chose to file this action on a form civil rights complaint. Thus, honoring plaintiff's choice of pleading, the court cannot conclusively say that plaintiff does not in fact intend to pursue some kind of as yet unspecified civil rights claim.

In order to allow plaintiff to clarify the nature of the action, the
current pleading will be dismissed with leave to amend.*fn1
Plaintiff is cautioned that failure to file an amended
complaint within the time provided in this order may result in
dismissal of the action for lack of prosecution and failure to comply
with court rules and orders.*fn2 See Local Rule 110.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's initial pleading (Doc. 1) is dismissed without prejudice and with leave to amend;

2. Plaintiff shall file an amended pleading within 30 days of the date of this order;

3. And the Clerk of the Court shall provide plaintiff with this court's form civil rights complaint by a state inmate.

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